"ETP threshold" means the upper limit that applies under section 159SG of the Income Tax Assessment Act 1936 for the financial year in which the declaration time occurs.

"total withdrawal value" means the amount determined in accordance with the regulations.

90MR Enforcement by court order

(1)

A court may make such orders as it thinks necessary for the enforcement of a payment split or payment flag under this Division.

(2)

The question whether a superannuation agreement or flag lifting agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts.

(3)

Without limiting subsection (2), in proceedings relating to a superannuation agreement or flag lifting agreement, the court has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction.

Division 3—Payment splitting or flagging by court order
90MS Order under section 79 may include orders in relation to superannuation interests

(1)

In proceedings under section 79 with respect to the property of spouses, the court may, in accordance with this Division, also make orders in relation to superannuation interests of the spouses.

Note 1: Although the orders are made in accordance with this Division, they will be made under section 79. Therefore they will be generally subject to all the same provisions as other section 79 orders.

Note 2: Sections 71A and 90MO limit the scope of section 79.

(2)

A court cannot make an order under section 79 in relation to a superannuation interest except in accordance with this Part.

90MT Splitting order

(1)

A court, in accordance with section 90MS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest):

(a)

if the interest is not a percentage-only interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

(i)

the non-member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations; and

(ii)

there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

(b)

an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

(i)

the non-member spouse is entitled to be paid a specified percentage of the splittable payment; and

(ii)

there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

(c)

if the interest is a percentage-only interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

(i)

the non-member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations by reference to the percentage specified in the order;

(ii)

there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

(d)

such other orders as the court thinks necessary for the enforcement of an order under paragraph (a), (b) or (c).

(2)

Before making an order referred to in subsection (1), the court must determine the value of the interest as follows:

(a)

if the regulations provide a method for determining the value of the interest, the court must determine the value in accordance with the regulations;

(b)

otherwise, the court must determine the value by such method as it considers appropriate.

(3)

Regulations for the purposes of paragraph (2)(a) may provide for the value to be determined wholly or partly by reference to methods or factors that are approved in writing by the Minister for the purposes of the regulations.

(4)

Before making an order referred to in paragraph (1)(a), the court must allocate a base amount to the non-member spouse, not exceeding the value determined under subsection (2).

Note: The base amount is used to calculate the entitlement of the non-member spouse under the regulations.

90MU Flagging order

(1)

A court, in accordance with section 90MS, may make an order in relation to a superannuation interest (other than an unflaggable interest):

(a)

directing the trustee not to make any splittable payment in respect of the interest without the leave of the court; and

(b)

requiring the trustee to notify the court, within a period specified in the order, of the next occasion when a splittable payment becomes payable in respect of the interest.

(2)

In deciding whether to make an order in accordance with this section, the court may take into account such matters as it considers relevant and, in particular, may take into account the likelihood that a splittable payment will soon become payable in respect of the superannuation interest.

Division 4—General provisions about payment splitting
90MV Court may cancel payment split

(1)

A court may, under section 79, make an order terminating the operation of a payment split if:

(a)

the superannuation agreement in respect of the payment split has ceased to be in force; and

(b)

the non-member spouse has not served a waiver notice on the trustee under section 90MZA in respect of the payment split.

(2)

The termination has effect for splittable payments that become payable after the date specified in the order.

90MW Deductions from splittable payment before calculating payment split

Any deduction that the trustee is entitled to make from a splittable payment is to be deducted from the splittable payment before calculating any payment split and before applying section 90MX.

90MX Multiple payment splits applying to the same splittable payment

(1)

This section applies if 2 or more payment splits apply to the same splittable payment.

(2)

The payments splits are to be calculated in order of their operative times, starting with the earliest time.

(3)

For the purpose of calculating each of those payment splits (other than the one with the earliest operative time), the amount of the splittable payment is taken to be reduced by the amount to which another person is entitled under the payment split with the next earlier operative time.

Example: W has a superannuation interest that is subject to 3 payment splits in respect of W's marriages to X, Y and Z (in that order). The operative times of the payment splits are in the same order as the marriages. Assume each payment split provides for a 50% share to the non-member spouse. W becomes entitled to a splittable payment of $100. The final payment entitlements are as follows: X gets $50. Y gets $25. Z gets $12.50. W gets the remaining $12.50.

90MY Fees payable to trustee

(1)

The regulations may:

(a)

allow trustees to charge reasonable fees:

(i)

in respect of a payment split; or

(ii)

otherwise in respect of the operation of this Part in relation to a superannuation interest; and

(b)

prescribe the person or persons liable to pay those fees.

(2)

If any such fee remains unpaid after the time it is due for payment, then the trustee may recover any unpaid amount by deduction from amounts that would otherwise become payable by the trustee, in respect of the superannuation interest, to the person who is liable to pay the fee.

90MZ Superannuation preservation requirements

(1)

If the eligible superannuation plan for a payment split is a regulated superannuation fund or approved deposit fund, then the entitlement of the non-member spouse is subject to any regulations made under the SIS Act that provide for payment of that entitlement to a regulated superannuation fund or RSA for the benefit of the non-member spouse.

(2)

If the eligible superannuation plan for a payment split is an RSA, then the entitlement of the non-member spouse is subject to any regulations made under the Retirement Savings Accounts Act 1997 that provide for payment of that entitlement to a regulated superannuation fund or RSA for the benefit of the non-member spouse.

(3)

If the eligible superannuation plan for a payment split is a constitutionally protected fund within the meaning of section 267 of the Income Tax Assessment Act 1936 or an exempt public sector superannuation scheme within the meaning of the SIS Act, then the entitlement of the non-member spouse is subject to any law or other instrument that provides for payment of that entitlement to a regulated superannuation fund or RSA for the benefit of the non-member spouse.

90MZA Waiver of rights under payment split

(1)

If the non-member spouse serves a waiver notice on the trustee in respect of a payment split, then the following provisions apply for each splittable payment that becomes payable after the date specified in the waiver notice:

(a)

the non-member spouse is not entitled to be paid any amount under the payment split in respect of the splittable payment;

(b)

the entitlement of the person to whom the splittable payment would have been made but for the payment split continues to be reduced in the same way as it would have been reduced if the entitlement of the non-member spouse had not been terminated.

Example: X has a superannuation interest that is subject to a 50:50 payment split in favour of Y. Y serves a waiver notice on the trustee, in exchange for a lump sum payment made by the trustee to another fund for the benefit of Y. The effect is that X's payments will continue to be reduced by half, but Y will receive no further payments under the payment split.

(2)

To be effective for the purposes of this section, a waiver notice must be in the prescribed form and must be accompanied by:

(a)

a statement to the effect that the non-member spouse has been provided with independent financial advice from a prescribed financial adviser as to the financial effect of the waiver notice; and

(b)

a certificate signed by the person who provided the financial advice, stating that the advice was provided.

90MZB Trustee to provide information

(1)

An eligible person may make an application to the trustee of an eligible superannuation plan for information about a superannuation interest of a member of the plan.

(2)

The application must be accompanied by:

(a)

a declaration, in the prescribed form, stating that the applicant requires the information for either or both of the following purposes:

(i)

to assist the applicant to properly negotiate a superannuation agreement;

(ii)

to assist the applicant in connection with the operation of this Part in relation to the applicant; and

(b)

the fee (if any) payable under regulations made for the purposes of section 90MY.

(3)

If the trustee receives an application that complies with this section, the trustee must, in accordance with the regulations, provide information about the superannuation interest to the applicant.

Penalty: 50 penalty units.

Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914 .

(4)

Regulations for the purposes of subsection (3) may specify circumstances in which the trustee is not required to provide information.

Example: The regulations might provide that a secondary government trustee is not required to provide information where there is another trustee of the eligible superannuation plan who is better able to provide the information.

(5)

The trustee must not, in response to an application under this section by a spouse of the member, provide the spouse with any address of the member. For this purpose, address includes a postal address.

Penalty: 50 penalty units.

Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914 .

(6)

If the trustee receives an application under this section from a person other than the member, the trustee must not inform the member that the application has been received.

Penalty: 50 penalty units.

Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914 .

(7)

The regulations may require the trustee of an eligible superannuation plan, after the operative time for a payment split, to provide information to the non-member spouse about the superannuation interest concerned. Such regulations may prescribe penalties for contravention, not exceeding 10 penalty units.

(8)

In this section: